State v. Cooper

Decision Date15 March 1999
Docket NumberNo. 24918.,24918.
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Kelvin COOPER, Appellant.

James C. Galmore, of Winnsboro, for appellant.

Attorney General Charles M. Condon; Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Donald J. Zelenka, all of Columbia, Solicitor W. Townes Jones, W, of Greenwood, for respondent.

TOAL, Justice:

In this criminal case, Kelvin Cooper ("Defendant") was convicted and sentenced for the murder of Charles H. Griffin ("Victim"). Defendant appeals his conviction.

FACTUAL/PROCEDURAL BACKGROUND

On March 1, 1995, Victim's cousin, John Griffin, discovered Victim stabbed to death in Victim's house in Newberry, South Carolina. John Griffin testified that he found Victim lying nude on the floor in the bedroom. Victim's throat had been cut and his face slashed. Victim had been cut, stabbed, and slashed over 70 times. Griffin immediately called the police.

Shortly after arriving at the scene, Newberry police developed Defendant as a suspect in the murder. Police visited Defendant at his mother's house and then escorted him to the police station. Officer Max Pickelsimer testified that Defendant's right hand was heavily bandaged. Defendant eventually removed the bandage, and police photographed cuts on his hand.

After being advised of his Miranda rights, Officer Pickelsimer asked Defendant if he wanted to make a statement. Defendant stated that he did. In a signed, written statement, Defendant denied any involvement in Victim's death. Defendant stated that on the night in question he was at his girlfriend's house until about 10:00 p.m. He then went to the store and stopped at his aunt's house to get out of the rain. He went back to his girlfriend's house at about 1:30 a.m. Afterwards, he returned home and went to bed. Defendant claimed he cut his hand while picking up a knife at his girlfriend's house. He again cut his hand on a knife the next morning while reaching for a cigarette lighter by the side of his bed.

After giving this initial statement, Defendant's mother told police that Defendant wanted to give another statement. Officer Charles Counts testified he tape-recorded Defendant's second statement. Defendant stated that after he left his girlfriend's house, he went to Victim's house to get a beer. Defendant claimed that while standing on Victim's porch, Victim came out and held a sharp object to Defendant's throat, forcing Defendant inside the house. Once inside, the two began to fight, resulting in Victim being cut. Defendant claimed Victim was still alive when he left the house.

On March 3, 1995, police interviewed Defendant for a third time. This interview was arranged to allow Newberry's Chief of Police, Louis J. Swindler, to question Defendant because Chief Swindler had been out of town during the initial part of the investigation. During the interview, Defendant gave another version of events. Defendant stated he went to Victim's house to get out of the rain and while standing on Victim's porch, Victim came out and held a knife to Defendant's throat, forcing Defendant inside the house. Defendant claimed that once inside the house, Victim forced Defendant to have sex with him. After the sexual act was over, the two began to fight, and Defendant grabbed the knife, cutting himself on the hand in the process. Defendant then stabbed Victim two or three times. Upon leaving the house, Defendant grabbed Victim's "Louis Rich" I.D. card and some personal papers and then returned to his girlfriend's house.

On December 7, 1995, a jury convicted Defendant of murder, possessing a knife during the commission of a violent crime, and larceny. Defendant was sentenced to life imprisonment for the murder charge, five years consecutive for the weapons charge, and thirty days concurrent for larceny. Defendant appeals, raising the following issues:

(1) Did the trial court err in failing to grant Defendant a new trial based on prejudicial comments by the trial judge throughout the trial?
(2) Did the trial court err in excluding exculpatory evidence pursuant to State v. Doctor1?
(3) Did the trial court err in failing to grant a mistrial based on outside influence on a juror?
(4) Did the trial court err in failing to grant a directed verdict on the charge of murder?
(5) Were the solicitor's closing arguments sufficiently prejudicial to warrant a new trial?
LAW/ANALYSIS
A. COMMENTS BY TRIAL COURT

Defendant argues that his conviction should be reversed because the trial judge made prejudicial comments toward defense counsel which influenced the verdict reached by the jury. Defendant further contends that prejudicial comments made to defense counsel outside the presence of the jury had the effect of prohibiting defense counsel from presenting an adequate defense. We disagree. Defendant cites to approximately twenty instances in the record where he contends the trial judge made prejudicial comments toward defense counsel. Defendant does not contend that any of the rulings constituted legal error by the trial judge. Rather, he argues the cumulative effect of the comments prejudiced the verdict because they tended to impugn the credibility of defense counsel by insinuating lack of legal skill. We have examined each of the instances about which appellant complains. Each involves a situation in which the trial judge and defense counsel are interacting with regard to evidentiary or testimonial rulings. On each complained of instance, the trial judge has either ruled against counsel, asked counsel to avoid repetitive questions, asked counsel for clarification, or declined a request by defense counsel.

It is well settled that a trial judge must act with absolute impartiality in the performance of judicial duties. State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994); Canon 3 of Rule 501, SCACR. In Pace, this Court granted a new trial where the trial court commented on defense counsel's age and gender. The Court found that the remarks of the trial court tended to impugn the credibility of trial counsel and to diminish her in the eyes of the jury. Further, in State v. Simmons, 267 S.C. 479, 229 S.E.2d 597 (1976), this Court found reversible error where the trial judge threatened defense counsel with a jail sentence, immediately after which counsel proceeded no further with the arguments. The Court concluded that the remarks tended to impugn the credibility of defense counsel.

In other instances, this Court has found the trial court's comments to defense counsel to be harmless. See, e.g., State v. DeBerry, 250 S.C. 314, 157 S.E.2d 637 (1967) (holding that trial judge's admonition to defense counsel to be brief and stop wasting court's time was not abuse of discretion nor prejudicial to the rights of defendant). Moreover, there is generally no prejudice when the trial court's hostile comments are made outside the jury's presence. See Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992).

In the instant case, the trial judge's comments and rulings were routine. None of the exchanges involved any improper, personal comment about defense counsel, nor did the comments tend to impugn counsel's credibility or diminish him in the eyes of the jury. Many of the comments were innocuous or merely explanatory of the trial court's ruling and were therefore permissible. See State v. Mishoe, 198 S.C. 215, 17 S.E.2d 142 (1941) (holding that remarks made by the judge in the course of a trial need not be confined in such narrow limits as to prevent him from stating his reasons for his rulings). Some of the comments were made outside the presence of the jury, and therefore, could not affect the verdict. See Graves, supra. Further, the contention that these comments nonetheless inhibited defense counsel is not supported by the record. In sum, these were instances in which the trial judge made routine rulings against defense counsel over the course of a four-day murder trial. There was no resulting prejudice to Defendant.

We therefore affirm the trial court on this issue. See State v. Bridges, 278 S.C. 447, 298 S.E.2d 212 (1982) (holding that, in general, the conduct of a criminal trial is left largely to the sound discretion of the presiding judge, and the appellate court will not interfere unless it clearly appears that rights of the complaining party were abused or prejudiced in some way).

B. EXCLUSION OF EVIDENCE

Defendant argues that the trial court erred in characterizing evidence as exculpatory and excluding it pursuant to State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992). At trial, Defendant proffered the testimony of Solomon Nelson who testified that while in a restaurant, he overheard Shirley Gilmore tell Peter Wayne Marshall that Gilmore, Dottie Suber, and Defendant's girlfriend had murdered Victim. Marshall admitted having a conversation with Gilmore about the murder but denied that Gilmore told him she killed Victim. Marshall testified that Gilmore simply told him that Defendant was not alone in killing Victim. Finally, Gilmore proffered testimony, denying she told Marshall that she killed Victim. Gilmore claimed she only told Marshall that she believed Defendant had not committed the crime.

After the testimony was proffered, defense counsel stated that he intended to first call Gilmore and then impeach her with Nelson's testimony. The solicitor objected on the basis of hearsay. The trial court sustained the objection pursuant to Rule 804(b)(3), SCRE, and State v. Doctor. The trial court further stated: "You see why you can't do that? You can't call a witness to come up and to deny that she ever made that statement she was involved in a murder of somebody and then bring somebody else to say that—it doesn't work that way."

In Doctor, this Court held that out-of-court statements against penal interest made by an unavailable declarant are admissible at trial. However, if offered to exculpate...

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